Chinese Legal Reform: Game On?

Recent years have witnessed a significant degradation in the climate for legal reform in China. Harassment of public interest lawyers has increased. Judges have been subjected to tighter political controls. Given this, it is easy to simply dismiss (as some already have) the State Council’s 2012 White Paper on Judicial Reform in China issued earlier this week as nothing but an effort to whitewash recent developments.

This is a mistake. Carefully parsing the specific language of the White Paper suggests that at least some central authorities are thinking about deepening legal and judicial reform.

Of course, the substantive content of the White Paper is not the most important feature. It is superficially similar to others that Chinese authorities have promulgated in the past on legal reform (both in 2008 and 2011). It touts state successes in protecting human rights. It reels off impressively large numerical statistics (such as the amount of legal aid provided). And it does this without discussing in detail the deep and obvious problems affecting the Chinese judicial system – problems such as corruption and lack of independence.

But, as is so often the case with official Chinese speeches and pronouncements, substance is only part of the picture. Often, one needs to examine how issues are framed, and which buzzwords are used, in order to see the message central leaders are seeking to send. [For an excellent discussion of this, see here.]

Indeed, Chinese authorities have employed precisely this technique to signal their intentions with regard to legal reform in the past.

The 2008 white paper on legal reform repeatedly referred to China’s efforts in constructing the “rule of law.” It stressed the need to continue reform efforts to resolve existing problems. And it touted Chinese international exchanges and cooperation.

In contrast, the 2011 version differed dramatically. It extensively employed the term “socialist system of laws with Chinese characteristics.” It further emphasized the extent to which legal reform had been largely completed. And it stressed the inapplicability of foreign models to China.

Naturally, all of these changes were entirely consistent with the tougher political line that has emanated from Party political-legal organs in recent years. In short, the clear message of the 2011 report was: the brakes were being applied to legal reform, the red lights were flashing with regard to foreign models and cooperation in the rule-of-law arena.

Now, the new 2012 White Paper on Judicial Reform appears to mark a substantial departure from the language employed just a year ago. The use of “socialist system of laws with Chinese characteristics” has receded. Even more interesting is what is not mentioned. Unlike the earlier documents, it contains not a single mention – not one in the entire twenty page document – to the Communist Party.

There are also clear signals that policy shifts are in the cards. The 2012 White Paper explicitly states that the most recent wave of judicial reform beginning in 2008 [the very year that the current head of the Supreme People’s Court assumed office and began strengthening hardline policies in the court system] is now “basically finished.” It characterizes judicial reform as an integral part of “institutional political reform,” and states that it will continue to strengthen and deepen in the years to come. Naturally, all of this sharply contrasts with the message conveyed just last year.

The big question is: why is this being issued now?

The 2011 white paper was issued mere days after the conclusion of the fall Party plenum last year, presumably reflecting some degree of elite consensus with regard to the direction of internal legal and political reform (at that point, clearly moving in a more hardline direction). In contrast, the 2012 paper has been released in the weeks leading up to one of the most uncertain and unclear leadership transitions that China has faced in decades.

Is this merely a tactical play by an individual leader seeking to put the issue of judicial reform on the table? Or is it a sign that top Party authorities have actually reached broad consensus with regard to relaunching legal reform in the wake of the November leadership transition?